Adults with incapacity ( Scotland ) Act 2000: proposals for reform

Chapter Twelve: Authorisation For Medical Treatment (s.47-50)

At present, there is no legislated process for the authorisation of measures to prevent a patient from leaving a hospital where this is required to keep them safe during and after treatment for physical health problems.

However, where an adult is admitted to hospital for psychiatric treatment and is unable to consent, the Mental Health (Care and Treatment) (Scotland) Act 2003 can be used to keep that person from leaving hospital. The AWI Act does provide for an authorisation and a safeguard when medical treatment of an incapable adult is needed promote to physical or mental health. This provision does not extend to authorising detention, save in circumstances where it is immediately necessary. This is process is authorised and documented via a section 47 certificate.

We recognise that a transparent, simple and straightforward process is needed which will allow an adult with incapacity to be prevented from going out of the hospital or some part of the hospital whilst they are undergoing treatment or a period of assessment in relation to their physical health.

We therefore propose to introduce a new section 47 certificate. This will be enhanced and integrated to provide for authorisation of medical treatment and if needed, also provide for the use of measures to prevent an adult with incapacity who requires treatment for physical health from leaving a hospital unaccompanied.

Extension of powers under section 47

We envisage extending the scope of the existing section 47 certificate to incorporate the ability for the lead medical practitioner to authorise that an incapable adult patient can be prevented from leaving hospital whilst undergoing medical treatment (including diagnostic tests) for a physical illness.

The intention is that there is authority to treat and, if needed, prevent a person from leaving hospital whilst that treatment is ongoing. Under current legislation, the section 47 certificate does not authorise the removal of a person to hospital for treatment and we would like views about whether in extending the provisions of the certificate we should include that as an additional provision.

Alternatively, the authority would only extend once a person has been admitted to hospital and does not authorise removal to hospital.

The model for the process for authorising this detention would be similar to a Short Term Detention Certificate ( STDC) under the Mental Health (Care and Treatment) (Scotland) Act (“the 2003 Act”). However, unlike a STDC there will be no statutory requirement for a MHO to be involved and we also propose to introduce the ability for review and renewal after 28 days. We also intend to propose a limit on the number of times that this could happen without judicial involvement in the decision, which will remove the possibility of a patient remaining in hospital indefinitely and also aims at ensuring suitable accommodation is available when needed.

Authorisation: It would be for the medical practitioner primarily responsible for the medial treatment or assessment of a patient to certify that the adult is incapable in relation to the decision of whether they can go out of hospital.

The medical practitioner remains responsible for undertaking regular reviews and also has the ability to revoke the certificate.

Consultation: By applying Principle 4 of existing AWI legislation there needs to be consultation with a patient’s family/guardian/attorney wherever reasonable and practicable and with the new enhanced principle, the adult with incapacity must be supported to participate in the decision. Therefore we propose to adopt provisions similar to those of section 50 which require the medical practitioner to seek consent to the proposed medical treatment. If consent is provided the treatment can begin, and this includes the ability to prevent a patient from leaving a hospital where this is required to keep them safe for physical health reasons.

Again and in line with existing provisions, if there is a disagreement between the practitioner and the proxy decision-maker, the practitioner must request that the Mental Welfare Commission provide a "Nominated Practitioner" to give a further (2nd) opinion.

Appeal: The adult or their family/proxy/guardian should be able to appeal the decision if they disagree with the medical practitioner’s decision to issue a certificate which allows for the adult to be prevented from leaving hospital. They would also have the right to request that the certificate be revoked.

Review: The majority of patents lacking capacity who are admitted to hospital remain there for a relatively short period of time to receive treatment for an acute medical problem therefore the new process is intended to be used during these stays in hospital.

We propose that under this new process there be provision for a regular review to ensure that the need to prevent an adult with incapacity from going out of the hospital or some part of the hospital whilst they are undergoing treatment or a period of assessment in relation to their physical health remains.

As part of the review process the patient must be supported to participate in the process as well as the relevant guardian or attorney being consulted. In common with a STDC, issued under the 2003 Act, we propose an interval of 28 days before first review. We also propose that there should be a restriction placed on how many times detention can be renewed by doctors before a judicial body must be involved in the review of detention.

End Dates: The purpose of this new process is to provide for the use of measures to prevent an adult with incapacity who requires treatment for physical health from leaving a hospital unaccompanied. In redesigning the provisions to prevent a person from leaving a hospital, then equally there should be provision which does not allow for an adult to remain without therapeutic reason. Therefore the introduction of an end date would be used to remove the authority to impose measures of restriction and place more emphasis on alternative accommodation being available when required. However, when that treatment is no longer required and the patient is well enough to leave the hospital facility we propose that there be a mechanism to provide for discharge with the aim of reducing the risk of an adult being kept in hospital because it is not possible to identify suitable alternative accommodation. This decision making process could be designed to fall in line with the proposed enhanced principles of the AWI legislation and could include the use of short term placements as described in Chapter Ten.

Questions:

Do you agree that the existing s.47 should be enhanced and integrated into a single form?

Do you think that there should be provision to authorise the removal of a person to hospital for the treatment of a physical illness or diagnostic tests?

Please explain your answer.

Do you agree that a 2nd opinion (medical practitioner) should be involved in the authorisation process? If yes, should they only become involved where the family dispute the need for detention?

Do you agree that there should be a review process every 28 days to ensure that the patient still needs to be detained under the new provisions? How many reviews do you think would be reasonable?

Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for a physical illness has ended?

In chapter 6 we have asked if we should give consideration to extending the range of professionals who can carry out capacity assessments for the purpose of guardianship orders.

Section 47 currently authorises medical practitioners, dental practitioners, ophthalmic opticians or registered nurses who are primarily responsible for medical treatment of the kind in question to certify that an adult is incapable in relation to a decision about the medical treatment in question. It also provides for regulations to prescribe other individuals who may be authorised to certify an adult incapable under this section.

Do you think we should give consideration to extending further the range of professionals who can carry out capacity assessments for the purposes of authorising medical treatment ? Please give reasons for your answers.